1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DUANE JOHNSON, Case No. 23-cv-06528-JSW

8 Plaintiff,

ORDER OF SERVICE

v. 9

10 STATE OF CALIFORNIA DEPARTMENT

OF CORRECTIONS &

11 REHABILITATION, et al., Defendants. 12 13 Plaintiff, a California prisoner, filed the instant pro se civil rights action pursuant to 42 14 U.S.C. § 1983. Dkt. No. 1. For the reasons explained below, the complaint is ordered served 15 upon defendants. Plaintiff will be granted leave to proceed in forma pauperis by separate order. 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 19 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 20 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 21 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 22 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 23 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 25 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 26 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 27 1 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 2 formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must 3 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 4 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 5 state a claim for relief that is plausible on its face.” Id. at 1974. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 9 If a court dismisses a complaint for failure to state a claim, it should “freely give 10 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 11 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 12 repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 13 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 14 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 15

LEGAL CLAIMS

16 Plaintiff’s complaint alleges as follows: 17 Defendants were involved in the decision to transfer over 100 prisoners, some of whom 18 were infected with COVID-19, from the California Institution for Men (“CIM”) to San Quentin 19 State Prison (SQSP)1 in May 2020. Dkt. No. 1 at 18-19.2 Defendants then failed to take adequate 20 safety precautions before, during, and after the transfer, including failing to test the transferring 21 prisoners or screen them for symptoms at the appropriate times, failing to implement distancing 22 measures on the transfer buses, and failing to test and isolate the transferred prisoners upon arrival. 23 Id at 19-20. Over the course of three weeks, SQSP went from having no cases of COVID to 499 24 cases, and by late July, SQSP had more than 2,000 prisoner cases and 26 prisoners had died from 25

26 1 The facility name has since been changed to San Quentin Rehabilitation Center. The former name is used in this Order for clarity. 27 1 the virus. Id. at 19, 24. Then defendants failed to follow the recommendations of a Marin County 2 public health official to mitigate spread, and that there was “a grave lack of personal protective 3 equipment and masks at San Quentin . . . even though masks and PPE were easily obtainable.” Id. 4 at 20-21. Defendants failed to follow the recommendations of a group of public health experts, 5 who toured SQSP at the request of federal receiver Clark Kelso, to release or transfer prisoners 6 and avoid reliance on punitive housing to quarantine the sick. Id. at 21-22. Further, defendants 7 refused offers by the Innovative Genomics Institute at Berkeley and by a research laboratory at 8 UCSF Medical Center to provide free COVID testing. Id. at 22. 9 Plaintiff alleges that defendants were aware of his high-risk factors for COVID, including 10 mixed hyperlipidemia, hypertension, and prediabetes. Id. at 32. He alleges he became infected 11 with COVID in June of 2020. Id. at 33. 12 Plaintiff names the following defendants: 13 1. The State of California 14 2. California Department of Corrections and Rehabilitation (“CDCR”) 15 3. SQSP 16 4. Ralph Diaz, former secretary of CDCR 17 5. Estate of Robert S. Tharratt, former Medical Director of CDCR 18 6. Ronald Davis, Warden of SQSP 19 7. Ronald Broomfield, Acting Warden of SQSP 20 8. Clarence Cryer, Chief Executive Officer of SQSP 21 9. Alison Pachynski, Chief Medical Executive of SQSP 22 10. Shannon Garrigan, Chief Physician and Surgeon of SQSP 23 11. Louie Escobell, Health Care Chief Executive Officer of CIM 24 12. Muhammad Farooq, Chief Medical Executive for CIM 25 13. Kirk Torres, Chief Physician and Surgeon for CIM 26 14. Does 1 through 20. 27 Dkt. No. 1 at 4. Plaintiff sues all defendants who are people in their individual capacities. Id. 1 Pachynski, Garrigan, Escobell, Farooq, Torres, and Does 1-20 violated his rights under the Eighth 2 Amendment by being deliberately indifferent, either directly or via supervisory liability, to his 3 medical and safety needs, and violated his rights under California Civil Code section 52.1. Dkt. 4 No. 1 at 34-41. He alleges that defendants State of California, CDCR, and SQSP violated his 5 rights under the Rehabilitation Act. Id. at 43. Plaintiff also brings a negligent infliction of 6 emotional distress claim against defendants Diaz, Estate of Tharratt, Davis, Broomfield, Cryer, 7 Pachynski, Garrigan, Escobell, Farooq, Torres, and Does 1-20. Id. at 45. 8 Plaintiff seeks declaratory relief, compensatory damages, punitive damages, and costs. Id. 9 at 47. 10 ANALYSIS 11 A. Eighth Amendment Claim 12 The allegations regarding the May 2020 transfer of CIM inmates into SQSP state 13 cognizable Eighth Amendment claims against defendants Diaz, Estate of Tharratt, Davis, 14 Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres. Farmer v. Brennan, 511 15 U.S. 825, 837 (1994) (prison official is deliberately indifferent if he or she knows that prisoner 16 faces substantial risk of serious harm and disregards that risk by failing to take reasonable steps to 17 abate it). 18 B. Bane Act 19 California Civil Code section 52.1, the Bane Act, “protects individuals from conduct aimed 20 at interfering with rights that are secured by federal or state law, where the interference is carried 21 out ‘by threats, intimidation or coercion’.” Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 22 (9th Cir. 2018) (quoting Venegas v. County of Los Angeles, 153 Cal.App.4th 1230, 1239 (2007)). 23 A defendant must have “specific intent” to violate the plaintiff’s rights. “But it is not necessary 24 for the defendants to have been ‘thinking in constitutional or legal terms at the time of the 25 incidents, because a reckless disregard for a person’s constitutional rights is evidence of a specific 26 intent to deprive that person of those rights’.” Id. at 1035, 1045 (quoting United States v. Reese, 2 27 F.3d 870, 885 (9th Cir. 1993)) (triable issue as to specific intent where the defendant deputy 1 he answered the door with a knife). Here, liberally construed, plaintiff has stated a cognizable 2 claim that defendants acted with reckless disregard for his constitutional rights, meeting the 3 elements of the Bane Act. 4 C. Rehabilitation Act 5 The elements of a § 504 Rehabilitation Act claim are that: (1) the plaintiff is a handicapped 6 person under the Act; (2) he is otherwise qualified; (3) the relevant program receives federal 7 financial assistance; and (4) the defendants impermissibly discriminated against him on the basis 8 of the handicap. Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988). The Act applies to state 9 prisons receiving federal financial assistance. Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th 10 Cir. 1997), and a state’s acceptance of federal funds may waive sovereign immunity. See Pugliese 11 v. Dillenberg, 346 F.3d 937, 937-38 (9th Cir. 2003) (per curiam). 12 Here, plaintiff has alleged that he has mixed hyperlipidemia, hypertension, and 13 prediabetes, and that defendants the State of California, CDCR, and SQSP receive federal 14 assistance and funds. Dkt. No. 1 at 44. He alleges that these defendants:

15 [W]ere required to make reasonable accommodations for [his] disabilities, such as providing additional enhanced PPE, providing 16 legally required N-95 respirators, changing the prison environment, sanitation and deep cleaning of the prison, eradicating vermin from 17 the housing unit, black mold remediation, single cell housing to allow for social distancing, enforcing social distancing and masking 18 mandates, and following well-known public health directives, Orders, and advice . . . to properly address the COVID-19 pandemic outbreak 19 at San Quentin. 20 Id. Plaintiff alleges that defendants violated the Rehabilitation Act by failing to accommodate his 21 disabilities and “subject[ing him] to even a greater risk of contracting and dying from COVID-19 22 than his non-disabled inmate cohorts.” Id. at 45. Liberally construed, plaintiff has stated a 23 cognizable Rehabilitation Act claim against defendants the State of California, CDCR, and SQSP. 24 G. Negligent Infliction of Emotional Distress 25 Plaintiff has also stated a cognizable state-law claim for negligent infliction of emotional 26 distress. Under California law, “there is no independent tort of negligent infliction of emotional 27 distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993). A negligent 1 plaintiff in which the emotional condition of the plaintiff is an object,” and “recovery is available 2 only if the emotional distress arises the defendant’s breach of some other legal duty and the 3 emotional distress is proximately caused by that breach of duty.” Id. at 985. Here, defendants 4 have a duty to plaintiff as a prisoner under state tort law. California “[c]ase law holds that ‘there is 5 a special relationship between jailer and prisoner, imposing on the former a duty of care to the 6 latter’.” Lawson v. Superior Ct., 180 Cal. App. 4th 1372, 1389–90 (2010) (quoting Giraldo v. 7 Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 250 (2008)). Plaintiff alleges 8 that the emotional distress arose out of defendants’ breach of their duty to him by exposing him to 9 COVID-19. 10 CONCLUSION 11 For the foregoing reasons, the Court orders as follows: 12 1. Plaintiff has stated the following cognizable claims against defendants Diaz, Estate 13 of Tharratt, Davis, Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres: 14 violation of the Eighth Amendment by deliberate indifference to his health and safety needs; 15 California Civil Code section 52.1; and negligent infliction of emotional distress. 16 2. Plaintiff has stated the following cognizable claims against defendants the State of 17 California, CDCR, and SQSP: violation of the Rehabilitation Act. 18 3. The Court ORDERS that service shall proceed by the United States Marshal 19 Service (“USMS”) on the State of California through the Office of the Attorney General. 20 4. The Court ORDERS that service on the following defendants shall proceed under 21 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for 22 civil rights cases from prisoners in the CDCR’s custody: 23 a. CDCR 24 b. SQSP 25 c. Ralph Diaz, former secretary of CDR 26 d. Estate of Robert S. Tharratt, former Medical Director of CDR 27 e. Ronald Davis, Warden of SQSP 1 g. Clarence Cryer, Chief Executive Officer of SQSP 2 h. Alison Pachynski, Chief Medical Executive of SQSP 3 i. Shannon Garrigan, Chief Physician and Surgeon of SQSP 4 j. Louie Escobell, Health Care Chief Executive Officer of CIM 5 k. Muhammad Farooq, Chief Medical Executive for CIM 6 l. Kirk Torres, Chief Physician and Surgeon for CIM 7 In accordance with the program, the clerk is directed to serve on the CDCR via email the 8 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 9 of E-Service Waiver form, and a summons. The clerk also shall serve a copy of this order on the 10 Plaintiff. 11 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 12 provide the court a completed CDCR Report of E-Service Waiver advising the court which 13 defendant(s) listed in this order will be waiving service of process without the need for service by 14 the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR 15 also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney 16 General’s Office which, within 21 days, shall file with the Court a waiver of service of process for 17 the defendant(s) who are waiving service. 18 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 19 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 20 USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies 21 of this order, the summons and the operative complaint for service upon each defendant who has 22 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 23 Service Waiver. 24 5. All defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 25 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 26 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 27 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 1 form. 2 6. In order to expedite the resolution of this case, the court orders as follows: 3 a. No later than 90 days from the date of this order, Defendants shall serve and 4 file a motion for summary judgment or other dispositive motion. A motion for summary judgment 5 must be supported by adequate factual documentation and must conform in all respects to Federal 6 Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming 7 from the events at issue. A motion for summary judgment also must be accompanied by a Rand 8 notice so that Plaintiff will have fair, timely and adequate notice of what is required of him in 9 order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 10 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 11 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust 12 available administrative remedies (where such a motion, rather than a motion for summary 13 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton 14 v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out 15 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 16 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to 17 dismiss for failure to exhaust available administrative remedies). 18 If defendants are of the opinion that this case cannot be resolved by summary judgment or 19 other dispositive motion, they shall so inform the court prior to the date their motion is due. All 20 papers filed with the court shall be served promptly on plaintiff. 21 b. Plaintiff must serve and file an opposition or statement of non-opposition to 22 the dispositive motion not more than 28 days after the motion is served and filed. 23 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 24 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 25 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 26 be granted when there is no genuine issue of material fact – that is, if there is no real dispute about 27 any fact that would affect the result of your case, the party who asked for summary judgment is 1 makes a motion for summary judgment that is properly supported by declarations (or other sworn 2 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 3 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 4 as provided in [current Rule 56(c)], that contradicts the facts shown in the defendant’s declarations 5 and documents and show that there is a genuine issue of material fact for trial. If you do not 6 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 7 against you. If summary judgment is granted, your case will be dismissed and there will be no 8 trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 9 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 10 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 11 prejudice. You must “develop a record” and present it in your opposition in order to dispute any 12 “factual record” presented by the defendants in their motion to dismiss. Wyatt v. Terhune, 315 13 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 14 did exhaust your available administrative remedies before coming to federal court. Such evidence 15 may include: (1) declarations, which are statements signed under penalty of perjury by you or 16 others who have personal knowledge of relevant matters; (2) authenticated documents – 17 documents accompanied by a declaration showing where they came from and why they are 18 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 19 in your complaint insofar as they were made under penalty of perjury and they show that you have 20 personal knowledge of the matters state therein. In considering a motion to dismiss for failure to 21 exhaust, the court can decide disputed issues of fact with regard to this portion of the case. 22 Stratton, 697 F.3d at 1008-09. 23 (The Rand and Wyatt/Stratton notices above do not excuse defendants’ obligation to serve 24 said notices again concurrently with motions to dismiss for failure to exhaust available 25 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 26 d. Defendants must serve and file a reply to an opposition not more than 14 27 days after the opposition is served and filed. 1 hearing will be held on the motion unless the court so orders at a later date. 2 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 3 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 4 || before the parties may conduct discovery. 5 8. All communications by plaintiff with the Court must be served on defendants’ 6 || counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 7 any document which a party files but fails to send a copy of to his opponent. Until defendants’ 8 counsel has been designated, plaintiff may mail a true copy of the document directly to 9 defendants, but once defendants are represented by counsel, all documents must be mailed to 10 || counsel rather than directly to defendants. 11 9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 12 || Court informed of any change of address and must comply with the Court’s orders in a timely 5 13 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 14 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 3 15 pending case every time he is moved to a new facility. 16 10. Any motion for an extension of time must be filed no later than the deadline sought 3 17 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 18 || he must include the case name and case number for this case on any document he submits to the 19 || Court for consideration in this case. 20 IT IS SO ORDERED. 21 Dated: April 3, 2024 22 / }

34 JEFFREY S. WHITE United/Statey/District Judge 25 ‘

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